West Virginia Supreme Court Rules Hate Crime Law Doesn’t Protect Gays

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Aug 15, 2017

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WV Supreme CourtThe West Virginia Supreme Court has ruled that the state’s hate crime law doesn’t apply to anti-gay attacks.

As the New York Times reported,

The case hinged on whether attacks based on sexual orientation could fall under a hate crime law that does not explicitly mention sexual orientation. Prosecuting lawyers in Cabell County, where the attack took place, argued that “sex,” which the law lists as a protected category, includes crimes committed on the basis of sexual orientation.

According to the court’s three-to-two ruling, the defendant, Steve Butler was riding in a car with friends in the early morning hours of April 5, 2015. While the car was stopped at a light, Butler saw two men kiss on the sidewalk.

Butler allegedly yelled homophobic slurs in their direction, then got out of the car and punched both of them, knocking one of them to the ground.

One of the victims was able to record the attack using his cell phone camera.

Hate Crime Law

Butler was incited for battery and for violation of an individual’s civil rights under West Virginia’s hate crime law.

Butler was also kicked off the Marshall University football team.

The state law provides:

If any person does by force or threat of force, willfully injure, intimidate or interfere with, or attempt to injure, intimidate or interfere with, or oppress or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of the State of West Virginia or by the Constitution or laws of the United States, because of such other person’s race, color, religion, ancestry, national origin, political affiliation or sex, he or she shall be guilty of a felony, and, upon conviction, shall be fined not more than five thousand dollars or imprisoned not more than ten years, or both.

The lower court found that “sex” did not include sexual orientation, and the state appealed.

Does “Sex” Include Sexual Orientation?

The state argued that the word “sex” was ambiguous and should be interpreted to include sexual orientation.

The state also argued that even if sexual orientation was not covered under the hate-crime law it should still be allowed to prosecute Butler on the basis that the crimes would not have occurred if one of the victims had been female.

The state supreme court ruled that the word “sex” in the law was unambiguous “and clearly imparts being male or female, and does not include ‘sexual orientation.'”

According to the Times,

West Virginia is one of only six states with a hate crime law that includes sex in its protections but not sexual orientation or gender identity.

Hate Crime Victims

According to the Times,

Federal hate crime law explicitly protects against crimes committed on the basis of sexual orientation and gender identity.

FBI statistics show that about 20% of hate crime attacks — including assault, murder, and rape — are made against gay, lesbian, and transgender people.

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